Questioning the Court: Roe v. Wade

And Judah said to Onan, “Come to bed with your brother’s wife and do your duty as brother-in-law for her and raise up seed for your brother.” And Onan knew that the seed would not be his and so when he would come to bed with his brother’s wife, he would waste his seed on the ground, so to give no seed to his brother. And what he did was evil in the eyes of the Lord, and He put him to death as well.
–Genesis 38:8-10 (trans. Robert Alter)

Today has been an inspiring day of reading in the blogosphere. It’s National Blog for Choice Day, because it’s the anniversary of Roe v. Wade. Friends and shadowy Web anonymos alike have been weighing in with brilliant, lengthy statements of support for a woman’s right to choose. My own personal favorite entries, up to now, have come from Truly Outrageous, Tomemos, and Jane Awake. There have also been excellent re-postings at Fetch Me My Axe and Women of Color Blog.

In thinking about how I could make my own contribution to this project, I was reminded of a conversation I had about a year ago on the subject of Roe v. Wade. It was the first time I had ever heard the legal argument that Roe v. Wade was an abuse of judiciary power. According to this argument, covered fairly thoroughly in the Wikipedia article on the case, the Fourteenth Amendment was not designed to protect the right to an abortion, and the way that Roe v. Wade characterized the right to privacy exceeded the scope of the Bill of Rights and contravened “the people and to the political processes the people have devised to govern their affairs” (from Justice White’s dissenting opinion).

One can also find in the Wikipedia article the argument that the anti-democratic nature of Roe v. Wade fueled the anti-abortion movement and, in the long-term, put the right to choose at risk rather than allowing a popular consensus in its favor to emerge.

1. The Constitutional Argument

In my view, Justice Blackmun’s legal distinctions between the three trimesters of pregnancy is the weakest part of the Court’s majority decision, and I do not intend to investigate or defend those here. However, I believe it is arguable that the essential achievement of Roe v. Wade was the negotiation between the legitimate state interest in what Blackmun termed “the potentiality of life,” and the Constitutional rights of pregnant women. This difference between potentiality, and actual infancy, is based on the viability of the fetus.

Tomemos puts the matter succinctly in his post:

Its status is the same as that of all her other cells: biologically dependent on her. It’s nourished by her nutrients, and if she dies, it dies. It’s her responsibility, a responsibility that cannot be shared, and as such it’s her decision whether to sustain it or not. Yes, you can argue that a newborn infant is dependent on its mother, too, but that’s not true—if others step in, they can keep it alive and growing.

In other words, the interest of the State in protecting the “potentiality of life” is actually the same as its interest in protecting the health of its citizens; reproductive health falls within the general category of individual health.

The right to privacy, where it extends to matters of personal health, is based on the understanding that the State may not protect its interest in the health of a citizen at the expense of that same individual’s own compelling interests. Men and women are perfectly at liberty to sterilize themselves or not; to use contraception, or not; and to make any number of other decisions (about diet, use of intoxicants, occupation, sexual activity or abstinence, and so forth) that affect reproduction. I quoted the passage from Genesis above to emphasize the point that the United States Constitution defines liberty in a fashion incompatible with some religious beliefs. The author of Genesis understood that one could not distinguish between the “potentiality of life” in Onan, and the same potentiality in a woman — but that is exactly what an abortion law seeks to do, sometimes in the name of religious values.

Justice Rehnquist wrote in his dissenting opinion that “The test [of the right to privacy] traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective.” He fails to grasp that the State may not choose to define these objectives differently for different individuals; to do so would be to violate the equal protection clause of the 14th Amendment.

2. The Historical Argument

Whether or not a consensus about abortion exists in this country is irrelevant to the question of a woman’s right to choose. Since a pregnant woman’s rights cannot be defined any differently than the rights of another citizen, it is perfectly legitimate for the Court to rule as it sees fit. The barriers that exist between the court and the immediate will of the populace, codified in the established processes of nomination, confirmation, and tenure for justices, are designed to help protect the Constitutional rights of citizens against national or local majorities when such protection is necessary. In this sense, there is no difference between Roe v. Wade and Brown v. The Board of Education. The Court has the right to be unpopular, and even to be the source of popular unrest. That is in the nature of a representative democracy.

It is inadmissable to try, as Justice Rehnquist does by citing state and territorial abortion law circa 1868, to comprehend the meaning of a Constitutional amendment based on the State laws in effect at the time of its ratification. The language of Constitutional amendments always has the potential to exceed or negate the existing body of legislation, because the relevance of the Amendment to a given law is weighed and decided by the courts on an individual basis. Whether that happens at the time of the ratification of the Amendment, or a century later, is a matter of historical contingency with no legal relevance.

Whether or not a given case should be brought to the Supreme Court is a matter of political and legal strategy. That said, there is no reason to think that religious fundamentalists would have gradually converted to a pro-abortion stance. Their positions are based on personal beliefs, not on a set of debatable facts, or on personal interests (e.g. economic interests) that could be satisfied in any other fashion.

More to the point, the immediate welfare of too many individual women and families depended on this precedent for any person of compassion to fall mournfully back on ex post facto hypotheticals of strategy.

* * *

This fight is one fought in many different arenas. It is fought in the courts. It is fought in clinics that provide abortions, and in “Pregnancy Crisis Centers” that try to confuse women about their options and rights. It is fought within communities and within families. An argument about the Constitution and the Supreme Court is one way of tackling the issue, but many others deserve our consideration.

It is fought in different ways. I’ll conclude with a cartoon that I saw once years ago, and which was so unforgettable that I was able to find it again this morning: